ASSIGNMENT

1.Attend the PA Disciplinary Board of the Supreme Court of PA hearing of Philip J. Berg on Friday, February 10, 2012 and then report back to the client.

INVESTIGATIVE SUMMARY

The investigator arrived to the aforementioned hearing at 9 AM on Friday, February 10, 2012 to confirm that the public was allowed attend. It was confirmed that the public could attend, but no electronic devices, including phones, laptops, iPads, etc. were allowed.

The hearing started slightly late and lasted several hours. The defense produced nine witnesses, including Philip J. Berg. The other eight were character witnesses. The counsel for the Office of Disciplinary Counsel produced one witness. The ODC crossed examine the first four witnesses, as well as Mr. Berg, but stipulated to the final four character witnesses.

The panel for the ODC stated that at the end of the hearing that once they receive the transcript a decision would be made within twenty days.

Mr. Berg seemed contrite but did get a little defensive at times. However, he did not loose control.

DETAILS OF INVESTIGATION

The hearing began slightly after 9:20 AM beginning with Mr. Berg’s attorney Sam Stretton. Mr. Stretton called Barbara May as his first character witness. Ms. May is an Adjunct Faculty Member of the Montgomery County Community College and has been a member of the bar association since 1982. Ms. May worked part time for Mr. Berg from about the late 1980’s to the early 1990’s. She has retained a relationship with Mr. Berg since before that time. This witness stated that Mr. Berg has a good reputation and his known to be honest and truthful. She also stated that she knows him to be peaceful and law abiding. Ms. Patricia Dugan, Disciplinary Counsel, cross examined the witness briefly, during which time Ms. May stated that she did not know anything about the specific allegations being made against Mr. Berg.

Mr. Stretton then called Carol Ann Miller as the next character witness. Ms. Miller has known Mr. Berg for twenty years and has been his fiancé for 16 years. She has been a teacher at a private preschool for twenty-five years. She knows Mr. Berg to be an honest and truthful person as well as a peaceful and law abiding citizen. She believes people within their community of Lafayette Hill would also say the same. Ms. Miller spoke of her knowledge of what the defense was trying to prove would be mitigating circumstances in his case. She stated that Mr. Berg took care of his brother for several years from the time he contracted colon cancer until his death seven years later. Mr. Berg’s brother also had schizophrenia. Additionally, Mr. Berg had to care for his mother who is now ninety-four years old. She and Mr. Berg were the only caretakers because his sisters live in Virginia and New Jersey. During this time, Mr. Berg also went through bankruptcy. Ms. Miller confirmed that her fiancé was active in the community, serving as a volunteer fire-policeman. Essentially, he arrives at the scene of a fire and directs traffic. He holds the rank of Lieutenant. He was also involved in various charities. Ms. Dugan cross examined and established only that Ms. Miller was not 100% sure of the allegations against her fiancé but did know that it the basic allegations had to do with him not telling a client everything about the client’s case. During the brief time of cross examination, Ms. Miller displayed what appeared to the investigator as contempt in her voice for the Disciplinary Counsel.

The third character witness was Sherry Klein, who has known Mr. Berg for about 18 years. She is currently unemployed but is a volunteer firewoman at the Barren Hill Fire Company. She started there eighteen years ago and that was when she first met Mr. Berg. She rose to the rank of captain, but has since stepped down and is currently the rank of lieutenant. She said that Mr. Berg was already a member of the fire department when she joined. She stated that his reputation is excellent and that he is a truthful, honest, peaceful, and law abiding citizen. She has regular contact with people who know and also respect Mr. Berg, most of which are with the fire department. Ms. Klein stated that she has never heard a bad word about Mr. Berg.

The fourth character witness called by Mr. Stretton was Arlene Tannenbaum. Ms. Tannenbaum is a manager for an insurance company. She has known Mr. Berg for 30 to 35 years. She hired him originally as a divorce attorney aft he came highly recommended by people in the community. They then became friends and have retained a strong relationship since. Ms. Tannenbaum called Mr. Berg the "Semi-Mayor" of Lafayette Hill. He is involved in several charities and the local fire department. When asked by Mr. Stretton how she would rate Mr. Berg's reputation on a scale of1 to 10, 10 being the highest, she responded that his reputation was excellent and would rate it a 9 or 10. Ms. Tannenbaum stated that she was unaware of the allegations against Mr. Berg.

Mr. Stretton then called his client, Philip J. Berg, to the stand. Mr. Berg said his date of birth is April 13, 1944. He testified that he has been an attorney since 1971 and has practiced continually since then. He was married and divorced once, but is currently engaged. He has two children. His daughter is a pharmacist in Tampa, FL. His son ran for district judge at the age of 16. The son is currently an attorney and a member of the bar in Pennsylvania, New York, and California.

Mr. Berg did his undergraduate work at Temple University and went to law school at Toledo University in Ohio. He clerked for the late Judge Sloan in Philadelphia and was employed by the Commonwealth of Pennsylvania in the Eastern Regional Office of the Attorney General's Office. Mr. Berg was an Assistant Attorney and was promoted to Deputy Attorney General. Hr gave notice in 1980 to run for the state senate. Mr. Berg was a member of of the Eastern District of Pennsylvania and was admitted to the 9th District Court in California.

Mr. Berg started his own law practice in 1980 and continues it to this day. In the past he has had associates but no partners. It is a general practice. The last years he has been by himself. He has a paralegal, Lisa Liberi, who lives in New Mexico. They communicate via email, fax, and phone. The practice's emphasis the last several years has been personal injury. Mr. Berg has argued in all three Appellate Courts in Pennsylvania.

Mr. Berg ran for various public offices from 1980 to 2000. In 1980, he ran for the State Senate. During the 1980's, he ran for his local school board. In 1990, he ran as a pro-choice gubernatorial candidate against Governor Bob Casey. In 1994, he ran for Lieutenant Governor. He again ran for governor in 1998. He then ran again for the State Senate in 2000. He did not win any of these races. However, he was elected as a Committee Person and then Chairman of the Montgomery County Democratic Party.

In 1981, he started as a volunteer fire-police in Lafayette Hill. He was a lieutenant for ten to fifteen years. He still participates and answers about 120-150 calls per year. The fire-police direct traffic at fires and accident scenes. Mr. Berg stated that it is a dangerous job and that more fore-police are injured or killed in Montgomery County than firemen. Training is involved but is conducted by the fire department.

Mr. Berg was a founding member of The Wellness Community, a support organization for cancer patients. Support includes medications which are free to patients. He was involved with this organization for ten to fifteen years. He was also involved with the Lions Club in Whitemarsh Township. He never had a leadership role a d is currently only "semi-active". Mr. Berg also served on the board of the Terri Lynn Lokoff Child Care Foundation for several years.

Mr. Berg is currently a member of the Montgomery County Bar Association. He has also been a member of the Pennsylvania Bar, American Bar, and Philadelphia Bar Associations.

Mr. Berg testified that 20-25% of his work had been pro bono, but that it is probably about 80% currently. He has done a lot of pro bono for animal rights. He is current with his CLE's.

He has also enjoyed participating in several plays and movies as an extra. He is a member of the Screen Actor's Guild. Mr. Berg stated that he has also performed stead-up comedy.

He states that he has no outstanding liens or judgments. He believes he is current with his taxes. In 1995 he declared bankruptcy. The discharge only was issued in the last four to five months. He was sued for legal malpractice once before.he does not recall if there was ever a judgment for malpractice.

Although Mr. Berg now takes full responsibility for his improper handling of McCracken vs. Lancaster City Police, et al, but offered as mitigating circumstances his family duties and a bankruptcy case that took over fifteen years. He has had to take care of his elderly mother, who is now 94, and his older brother. As mentioned earlier, his brother suffered from schizophrenia and had colon cancer for seven years before passing. He stated that his involvement with his family duties impacted his job duties. He has also litigated law suits against the United States of America, both President Bushes, President Obama, among others. These cases were pro bono and very time consuming.

He emphasized that ultimately he was responsible for the McCracken case and now that he now realizes he should not have accepted. That case was a civil rights case and Mr. Berg stated that he failed his client. He failed to file in a timely manner and failed to tell her that the case was dismissed. Mrs. McCracken only found out about it two years later when she Googled her name.

Mr. Berg admitted to all charges regarding violations of the rules of conduct, including competence, scope of responsibility, lack of diligence, constant communications, conduct prejudicial to the administration of justice, and misrepresentation to the client. He admits that this is not acceptable behavior for an attorney. He claimed that the case occurred during the time of family duties but recognizes that this is not an excuse. Mr. Berg stated that he was reprimanded in 2005 for commingling funds and in 2006 for not properly communicating with a client. He also admits that his bad behavior has had a negative affect on the legal community.

His practice is much lighter now. He does his own typing, but Lisa Liberi does some. His active case load includes about fifty paying clients. This includes about twenty to twenty-five summary offense cases, ten personal injury cases, five Cases in the Court of Common Pleas, two wills, two domestic cases, a criminal defense case or two, and a traffic case or two. Mr. Berg said that he is on top of his current case load.

Mr. Berg also stated that he owed an apology to the panel for frivolous claims and suits. When his attorney asked why, he said that in the past he simply had the wrong thought process. He agrees that he acted irresponsibly. He accepts full responsibility. He understands and admits that McCracken did not receive letters and he dropped his original defense to this case against him.

He again affirmed his full responsibility for what happened with the McCracken case, but asked the panel for leniency and relief.

Ms. Dugan then cross examined Mr. Berg. Her first question was whether or not the information added today is true or false. He said it was true. She then asked if the previous information was therefore false and a lie. Mr. Berg admitted to rules violations. Asked if the information about his now accepting responsibility for the allegations against him was true or false, he responded “true”.

Many of the questions by Ms. Dugan revolved around the letters that Ms. Liberi sent to Mrs. McCracken. Mr. Berg claims that he did not direct Ms. Liberi to write the letters and therefore did not have firsthand knowledge of them. He said that it was not uncommon for his staff to take it upon themselves to write letters when they felt it was appropriate.

Mr. Berg claimed that he had to downsize from a very large office space to a very small space. Some original files were lost, including the McCracken case. He stated that the McCracken case had to be recreated. The letters were some of the only items still on his computer, but that the letters on the computer were not signed. When recreating the file, he sent copies to Ms. Liberi for her signature. She also supplied an affidavit stating that she did in fact type those letters and send them to the client.

Berg admitted to failing to tell the client her case was dismissed. He would not admit to covering it up. When asked what specifically he was admitting to, he said that he did not fabricate anything. He believed the information was correct. He did not forge or fabricate any materials. When asked how he recreated the file, he said from information and letters in the computer and from court filings.

He was asked by Ms. Dugan if he knew that Ms. Liberi was a felon in California. This question was objected to and sustained.

Ms. Dugan appeared to be trying to get Mr. Berg to admit to a cover up, but her line of questioning was objected to. The panel understood where she was trying to go with her questions but stated that she must continue carefully. Mr. Stretton then asked if he could ask his client a question or two to clarify. He was allowed. He asked Mr. Berg if he admitted to being less than candid with the court before he had counsel (Mr. Berg originally represented himself). Mr. Berg said “yes”. Berg was then asked if he would have filed complaints if he originally had counsel. He said “no”. He was then told that the ODC asked for the hard file on two separate occasions. Mr. Stretton asked why he didn’t comply with the request. Mr. Berg stated that he did not have a good answer. He admitted that he should have.

After a break, Mr. Stretton introduced four more character witnesses on behalf of Mr. Berg. Disciplinary Counsel stipulated that they would all say that Mr. Berg was a honest man and a terrific son, friend, etc. The witnesses included Mr. Berg’s mother, Katherine Barone (practicing law since 1948), Lewis Hollad, and Lewis Hollad III. The Holad’s were business neighbors for twenty-four years.

Disciplinary Counsel then introduced their own witness, Mr. Stephen Schmitt. Mr. Schmitt is a former Special Agent of the FBI and has been an auditor and investigator for the Disciplinary Counsel for seven years. As an FBI agent, he investigated criminal activity of various kinds. The contention of the Disciplinary Counsel was that the documents in question were forged or fabricated. Mr. Schmitt was introduced only to show comparisons of what the investigator believed to be Ms. Liberi’s signature, but may have been Mrs. McCracken. He did this using a Word program on his computer. He cut signatures from three different documents, one of which was known to contain true signature. He then overlaid the signatures to determine if the signatures were identical. Mr. Schmitt was not a handwriting expert and did not offer an opinion. He simply explained how he used the readily available computer program to capture the signatures from the documents and then compare those signatures. The computer program was not developed for handwriting analysis. Mr. Schmitt used a laptop and projector to present the comparisons on one of the walls of the courtroom. Mr. Stretton objected, stating that without an expert, the panel was essentially becoming that expert and the panel did not have that expertise. The panel decided that they would look at the information without drawing any conclusions at this time.

Both sides then rested their cases. The panel stated that both sides should prepare their briefs. The panel would await the transcripts of the hearing and then they would have twenty days to make a decision.

ATTACHMENTS

NONE.

Report Reviewed By: ________Jon R. Goldner_

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